Conquering Rome: Is ‘Rome Sweet Rome’ owned by the Internet?

[Originally published in the Los Angeles Daily Journal on November 11, 2011. Reposted here with permission. All rights reserved.]

When a story is written by a crowd, who owns the rights to it? That is the question with “Rome Sweet Rome,” a new screenplay penned by James Erwin on social media site Reddit.com. The story was inspired by an idea from one user, written into a short story by Erwin, and had music, mock movie posters and other graphics contributed by others. Last month, Warner Bros. purchased the rights to the screenplay from Erwin, but the question remains: who, if anybody, owns the rights to “Rome Sweet Rome”?

The idea for the movie came from a question posted by user “The_Quiet_Earth” on Reddit’s message boards: “Could I destroy the entire Roman Empire during the reign of Augustus if I traveled back in time with a modern U.S. Marine infantry battalion or MEU [Marine Expeditionary Unit]?”

Prufrock_451 (James Erwin) responded to the question in story form, describing the MEU’s first day in ancient Rome. Erwin’s subsequent entries followed the time-traveling marines through eight days of adventures and inspired a dedicated Reddit community called “Rome Sweet Rome.” Other users contributed fan made art, mock movie posters, and even contributions for a “Rome Sweet Rome” soundtrack.

After a short time, Adam Kolbrenner of Madhouse Entertainment approached Erwin about writing a screenplay. A contact of Kolbrenner’s at Warner Bros. liked the idea and the studio purchased rights to a movie version of Erwin’s story.

This simple scenario was complicated by Reddit’s user agreement, which states in part:

“you agree that by posting messages, uploading files, inputting data, or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so.”

Effectively, this appears to give Reddit and its parent Condé Nast the ability to transform or adapt Erwin’s story for any purpose, including commercial purposes. The Hollywood Reporter rightly mused that Erwin could probably write a full script and copyright that.

Though Reddit might have the right to take Erwin’s underlying idea and develop it into a separate script and sell it to a rival studio, this is unlikely. For one, sites like Reddit are largely dependent on user submitted content to attract visitors. Reddit is unlikely to risk endangering the 1.8 billion monthly page views it received in October by commercializing user content without that user’s permission. The vibrant Reddit community is largely supported by the goodwill its users.

On the other hand, Condé Nast has had trouble monetizing Reddit and may see “Rome Sweet Rome” as a business opportunity. A major movie concept from comments wholly owned by Reddit may be worth the fight for Condé Nast, though they have yet to make any legal moves towards challenging the sale to Warner Bros. Yet if Reddit moderator hueypriest’s recent comment that it would be “completely against our interests to sabotage something awesome created by a Redditor” is any indication, Reddit is unlikely to act in the near future.

Besides the issue of Reddit’s licensing rights are questions of the multi-author, crowdsourced nature of “Rome Sweet Rome.” The_Quiet_One was not compensated for coming up with the idea for the movie, though the original concept was his idea. Also uncompensated were the users who contributed mock-ups for movie posters, movie music and logos. Are these users also entitled to compensation by Warner Bros?

Under the copyright code, a “collective work” is “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. Section 101. “Rome Sweet Rome” does not appear to fit into this category, as it is a single story, not a collection of separate and distinct short stories or articles.

Interestingly, a work is created under the copyright code when it is “fixed in a copy or phonorecord for the first time.” 17 17 U.S.C. Section 101. Subsequently, a “derivate work” is defined as one that is “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”

From these definitions, one could speculate that The_Quiet_One “created” the concept for “Rome Sweet Rome” when he posted the question about an MEU in ancient Rome to Reddit. Because Erwin’s story was based upon this preexisting idea, “Rome Sweet Rome” is arguably a derivative work.

The question of who owns the movie is intriguing because it’s largely new territory under the copyright code and intellectual property laws. Never before has an Internet comment turned into a screenplay, let alone be purchased by a large studio. The answer to who owns the story will shape the future of copyright protection for crowdsourced works and may make sites like Reddit weigh user opinion against future mon

Great article, Nick. I attended many a copyright lecture while producing in LA. The best thing I ever heard from an attorney at the end of a session was, “We can talk about copyright laws until the cows come home, but if someone wants to contest, the only answer is litigation.” Meaning, an idea is just an idea until someone makes it happen, and if any questions come up, it’s to the courtroom. The money made is too great in the industry for “he said, she said.” I’m thinking it’s hallway litigation for this one, if anything throw the guy a bone before millions are made!

It certainly seems to me like it would be in Reddit’s best interest to let this one go. If it becomes a viable medium for producing profitable movie scripts, maybe Reddit can cash in later. However, stepping in now seems like it would nip the entire thing in the bud and possibly squash similar future projects.

That’s a fair point. Let’s talk it out. A “work” under the copyright code is defined below:

17 U.S.C. Section 102

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;

The_Quiet_One’s question was posted on a website, which arguably makes it fixed in a tangle medium. He typed it out and posted it where it could “be perceived, reproduced, or otherwise communicated.” It certainly was an original work of authorship.

A derivative work is defined as “a work based upon one or more pre-existing works.” 17 U.S.C. Section 101 If The_Quiet_One’s question was a copyrighted work and Erwin’s story was based on it, this seems to me to fit into the copyright code as a derivative work.

Your argument would make any ideas for plots protectable, provided someone had the foresight to write them down. The Ninth Circuit put that idea to rest in Berkic v. Crichton, 761 F.2d 1289, 1293: “No one can own the basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.”

WIthout knowing what the initial post said (was it just “What would happen if . . .?” Or was the idea fleshed out more than that?), I think any claim for infringement would have to fail the substantial similarity test. There just wouldn’t be enough similarity between a hypothetical question about what would happen and a fleshed-out screenplay.

It is an interesting question. I teach a law class for art students, and I may use this in my class.

About the Author

My name is Nick Solish and I am a young attorney practicing in Los Angeles, California. I created this blog to explore my interest in intellectual property law and its interaction with technology. I am currently looking for work in the Los Angeles area. If you would like to contact me, send an email to nick.solish at gmail.com. Thank you.